Refund of Provisional Pilferage Amount Is Lawful If Theft Not Proved: Calcutta High Court Upholds Acquittal in Electricity Theft Case

“When theft is not proved, no civil liability survives — refund under Section 154(6) is not only permissible but necessary”, In a significant reaffirmation of procedural fairness and consumer rights under the Electricity Act, 2003, the Calcutta High Court dismissed an appeal filed by the West Bengal State Electricity Distribution Company Limited (WBSEDCL), which sought to overturn an acquittal in a theft of electricity case and to block the refund of a provisional assessment amount of ₹1,32,556 paid by the accused.

Justice Chaitali Chatterjee Das upheld the Special Court’s acquittal of the accused under Section 135(1)(a) of the Act and affirmed the direction to refund the amount collected under the provisional assessment. The Court ruled that civil liability for pilferage does not survive an acquittal in a criminal trial for electricity theft, and thus, the special court was fully empowered to order refund under Section 154(6) of the Act.

“Acquittal Nullifies Any Liability Arising From Provisional Assessment” – No Evidence, No Penalty

The crux of the prosecution’s case was an allegation that the accused, Prasenjit Dutta, was illegally hooking electricity from low-tension overhead lines, as discovered during a routine inspection by WBSEDCL on 28 May 2012. Based on this, a provisional assessment of ₹2,65,112 was raised, and the accused paid ₹1,32,556 during pendency of the criminal proceedings.

The trial ended in acquittal on 31 January 2014 by the Special Court, Arambagh, which also ordered refund of the amount paid. WBSEDCL challenged both findings before the High Court, arguing that the acquittal was perverse and that the special court had no power to order refund, as such matters were civil in nature.

Justice Chaitali Chatterjee Das, after detailed examination of the evidence, dismissed the challenge, holding:

“The prosecution case stands crippled not only with paucity of evidence, but has been crumbled by total dearth of evidence necessary to prove the offence.”

The Court observed that no independent witnesses were examined, and the identification of the accused was uncertain and uncorroborated. The seizure list failed to establish clear ownership or connection of the hooked wire with the accused. Moreover, the Investigating Officer admitted that he could not confirm whether the accused was even the resident or owner of the house in question.

“Special Court Is Not a Civil Court, But It Can Refund Money When No Offence Is Proved” – High Court Clarifies Jurisdiction under Section 154(6)

WBSEDCL had also argued that the Special Court lacked the power to direct refund, as the Electricity Act does not create a civil forum within the special court. However, the High Court rejected this contention, stating that Section 154(6) specifically empowers the Special Court to order refund of any amount deposited if no civil liability arises after trial, such as in the event of an acquittal.

Justice Das held:

“It is clear that the Special Court is empowered to pass the order to refund the amount, when the provisional assessment was made due to pilferage and the order of acquittal is passed — the question of final assessment does not arise.”

The Court also drew support from the Supreme Court’s judgment in Executive Engineer, SOUTHCO v. Seetaram Rice Mill, (2012) 2 SCC 108, which explained the distinction between Section 126 (unauthorised use) and Section 135 (theft) of the Electricity Act:

“Section 135… deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimension of criminal jurisprudence.”

“Section 154(6) provides that in case the civil liability so determined finally by the Special Court is less than the amount deposited, the excess shall be refunded… together with interest.”

The High Court agreed that since no offence was proved, and no civil liability was established, any amount collected under the premise of theft must be returned, otherwise it would amount to unjust enrichment.

“Presumption of Innocence Is Strengthened Post-Acquittal”: High Court Declines Interference

On the question of whether the High Court should interfere with the acquittal, Justice Das underscored the settled principle of cautious appellate review in cases of acquittal, quoting the Constitution Bench in M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200:

“The presumption of innocence in favour of the accused is not weakened by the fact that he has been acquitted at his trial.”

Applying this principle, the Court found no perversity or legal error in the Special Court’s reasoning and concluded that there was no justification for appellate interference. The evidence, the Court noted, was vague, speculative, and lacked corroboration on core issues like the identity of the person, the actual act of hooking, or the ownership of the premises.

Provisional Bills Cannot Survive When Theft Isn’t Proven

Ultimately, the Calcutta High Court dismissed the appeal, affirming both the acquittal and the refund order, and reinforced the principle that civil or financial liabilities based on a charge of theft under Section 135 must collapse if the prosecution fails.

“Since the primary allegation of theft is not proved, the question of making payment on account of such pilferage does not arise,” the Court declared.

This decision reiterates the statutory balance under the Electricity Act, 2003, between empowering electricity authorities to act against theft, and safeguarding citizens from arbitrary or unsupported penal action. It also underscores the role of procedural safeguards and burden of proof in criminal trials, particularly when financial consequences hinge on criminal findings.

Date of Decision: 01.12.2025